Naming A Justice

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“With some hesitation I titivated and came down at 7 to be received by a little Velazquez girl [Ethel, Roosevelt’s younger daughter] who curtsey’d and then proceeded to play the hostess with a delighted mixture of child and grown up. To us entered a little boy of about the same size and quality [probably her brother Kermit]. They explained their regrets that their elder brother [Theodore, Jr.] could not appear as he was not feeling quite right having eaten an apple pie and a half.

“Presently they discovered that I had been in the Civil War and asked me to tell my adventures. So I told them tales adapted to their years and gathered afterwards that I gave satisfaction.

“After dinner came a telegram that the Pres’dt was stuck in a fog and would not get back till morning. I was to remain. …

“In the morning between 9 and 10 the President and Mrs. Roosevelt came up very amiable. I had a little talk with him in which he said just the right things and impressed me far more than I had expected …”

Out of ninety-seven nominations by 1916, thirty-one had died in the Senate.

The talk dissolved all doubts, and Roosevelt sent Holmes to his destiny.

Unlike Story and Holmes, Brandeis and Frankfurter reached the Court because each had a solid (and, in Frankfurter’s case, long-standing and intimate) working political relation with the appointing President.

An enormously successful practice had given Brandeis the financial independence to become “the People’s Attorney,” handling a series of public-interest cases involving railroads, insurance companies, and savings-bank life insurance. In 1910, he had participated in the explosive Senate committee hearings investigating Secretary of the Interior Richard Ballinger’s mishandling of rich Alaskan coal lands. The affair had made Brandeis a national figure, not least because he had caught President William Howard Taft in a clumsy and embarrassing lie and brought it loudly to the public’s attention.

Two years later, when the Democrats nominated Woodrow Wilson, Brandeis assumed a significant campaign role, advising Wilson, furnishing what today would be called position papers, making speeches all over the Northeast, and writing articles and even editorials for the vigorously anti-Taft Collier’s Weekly .

 

The victorious Wilson did not make Brandeis his Attorney General, but he continued to rely on his acumen and political ability to bring about the program that came to be called the New Freedom. Appointment to the Supreme Court seemed an eventual certainty, although no Jew had ever joined it, or even come close since 1852, when President Millard Fillmore vainly offered a seat to Judah P. Benjamin, who preferred to remain a senator from Louisiana.

On January 28, 1916, Wilson announced Brandeis’s nomination and ignited an unprecedented battle. The idea of thwarting a President’s choice was hardly novel; out of ninety-seven nominations to that time, thirty-one had died in the Senate. Never, however, had a confirmation fight blazed this hot and for this long—almost six months. Never had one involved such intense, variegated social, political, and professional confrontation.

In his devotion to bettering society, Brandeis had often confronted powerful interests represented by conservative lawyers. Unfortunately his tact had not always matched his zeal. On one notable occasion, asked how he could represent two apparently conflicting parties, Brandeis had suavely replied, “I should say I was counsel to the situation.” The legal establishment took this kind of behavior hard. Harvard’s president, A. Lawrence Lowell, and numerous Boston lawyers signed a petition opposing the nomination, and seven former American Bar Association presidents came out against Brandeis.

The Senate Judiciary Subcommittee heard testimony pro and con that ultimately ran to more than one thousand transcript pages. Witnesses testified for and against the nomination, but the nominee himself, conforming to the practice of the time, never appeared before the senators. His partner Edward McClennen moved temporarily to Washington to direct the fight there; another partner, George Nutter, coordinated operations in Boston. Brandeis, however, remained the dominant mind: planning strategy, writing to supporters, and lobbying key senators.

In the hearings the Boston lawyer Moorfield Storey, a great friend of Holmes, told the subcommittee of Brandeis’s reputation: “an able lawyer, very energetic, ruthless in the attainment of his objects, not scrupulous in the methods he adopts, and not to be trusted. … There is a radical lack of confidence in him among a representative class of men in the community in which I live, and which has existed for a good while.” Anti-Semitism plainly played a part in the controversy; some prominent Jews, concerned lest the dispute nourish bigotry, even asked Wilson to withdraw the nomination. On the other hand, Harvard’s president emeritus Charles W. Eliot wrote strongly in support. Said Edward McClennen: “Next to a letter from God, e have got the best.”